This December, the Universal Declaration of Human Rights celebrates its 70th anniversary. Despite its achievements, we must not forget that the concept of human rights still has limitations. One aspect that needs further discussion is the protection of the rights of Indigenous peoples within its framework. In today’s post Janushcka Schmidt wants to argue that, to make human rights genuinely inclusive, we must not only protect rights by law (de jure) but also safeguard their application in practice (de facto).

Declaration on the Rights of Indigenous Peoples: History and Consequences

The implementation of the Declaration on the Rights of Indigenous Peoples (DRIP) is an immense political success for Indigenous peoples around the world. The idea of Indigenous rights can be traced back as far as the 1920s, when Haudenosaunee Chief Deskaheh and Māori T.W. Ratana brought treaty failures to the attention of the prosecutor of the United Nations. Sixty years later, the UN Economic and Social Council (ECOSOC) set up its Working Group on Indigenous Populations (WGIP) to protect Indigenous peoples by developing human rights that specifically applied to them.

In 2007, after a long process of re-drafting and extensive discussion (especially of terms like “self-determination” and “sovereignty”), the General Assembly of the UN accepted the Declaration on the Rights of Indigenous Peoples, with only four countries voting against it. These countries – Australia, Canada, New Zealand, and the United States – all have substantial Indigenous populations. Later, these four countries accepted DRIP as a not-legally-binding document in response to international and local activism.

The Declaration on the Rights of Indigenous Peoples is primarily concerned with:

• the self-determination of Indigenous peoples;
• protection of Indigenous cultures, languages, education, media, and religions;
• the right to self-governance and economic development by Indigenous peoples;
• issues concerning Indigenous lands (e.g., ownership of traditional lands or the environment);
• and the necessity to involve Indigenous peoples in all decisions concerning them.

One consequence of international and local activism and the implementation of DRIP was the birth of a global Indigenous identity based on a universal definition of indigeneity. Indigenous activist groups worldwide worked together towards the Declaration on the Rights of Indigenous Peoples. To achieve this, it was necessary to find common ground concerning who is Indigenous and what constitutes indigeneity. Some examples of commonality are a connection to a particular traditional land, a similar approach to spirituality, and a shared experience of colonialism and oppression.

The UN also adopted a definition of indigeneity to assess who can access Indigenous rights. Today, the core components of indigeneity recognised by the UN are:

1. a historical connection to a specific territory and its resources,
2. continuing cultural distinctiveness, which, for example, may include language or spirituality,
3. self-identification or recognition by a nation-state as a distinct group,
4. and the experience of oppression, especially through colonialism.

The Shadow of Colonialism: Critiques of the Concept of “Indigenous”

This definition has faced some criticism. In particular, critics are concerned with the question of who defines those criteria, who decides whether a group or community is Indigenous, and who defines what is worth protecting. All of these issues are connected to structural imbalances in power between Indigenous and settler communities. In theory, DRIP should empower Indigenous peoples. However, if structural disadvantages continue to exclude Indigenous people from discourse about their rights/identity, are these rights operating successfully as a tool of empowerment?

This problem of DRIP begins with the definition of indigeneity.[1] The UN defines indigeneity through the experience of colonialism. Colonialism is commonly understood as subjugation and physical dispossession by settlers from overseas, who force their (outsider) culture onto the Indigenous community. This aspect is problematic insofar as the UN only refers to colonialism by European nation states, therefore reinforcing the idea that only European nations colonized other cultures. As a result, culturally diverse areas are assimilated into one culture.

According to members of the Asia Indigenous Peoples Pact (AIPP), for example, this is the case in China, which has annexed a number of neighboring states/countries. Two examples are the Tibetan and Uyghur people, which are represented by the Tibet Centre for Human Rights and Democracy and the Uyghur Human Rights Project (UHRP). However, the UN does not view the majority of these communities as Indigenous peoples, because they were not colonized by foreign nation-states. This claim is based on the idea that the Chinese culture is not “distinct enough” from the conquered culture. This understanding ignores the fact that these countries had, and continue to have, their own distinct culture, language, and religion(s). Discourses concerning indigeneity are happening not only in China, but in a number of Asian countries, such as Japan, Taiwan, Philippines, Indonesia, Thailand, Cambodia, Vietnam, Laos, Myanmar, India, Bangladesh, and Nepal. Context and discussion are highly diverse; thus, the example of China cannot represent the struggles of all Indigenous peoples in Asia.[2]

According to the UN, self-identification or recognition by a nation-state as Indigenous should be enough to enable access to the rights guaranteed by DRIP. Unfortunately, in reality, recognition by the state is usually required, while self-identification is optional. As a result, only peoples who are recognized by the state in which they reside are able to access Indigenous rights. For example, after a long activist struggle and increasing international attention, the Japanese government recently recognized the Ainu people in Hokkaido as Indigenous to Japan.[3] By contrast, as mentioned above, Tibetans and Uyghurs who live within the borders of China are still not recognized as Indigenous peoples and can, thus, not access DRIP to strengthen their position towards the Chinese government.

Indigenous rights are of particular importance when settler governments are in conflict with Indigenous peoples, for example over sovereign land rights and land use of traditional territories of Indigenous peoples.[4] The Mohawk lawyer and legal academic, Stephen John Ford, describes Indigenous sovereignty as:

[…] on its face, a straight forward proposition. It can be as simple as the individual exercise of a collective Indigenous right such as hunting, fishing or gathering. On a far larger scale is the exercise of Indigenous sovereignty at the level of Nationhood […]. Perhaps most importantly, is the exercise of sovereignty through the development and application of legislation based upon Indigenous law. Application is understood as jurisdiction over territory and persons within that territory.

Claims to sovereignty are concerned with the spiritual relationship between peoples and the land based on Indigenous worldviews. These worldviews vary significantly at both global and local levels. Nonetheless, there are some common aspects that distinguish these worldviews from settler beliefs. For example, in many Indigenous worldviews, humans are in interconnected relationships with all other living and non-living entities. Humans are considered the caretakers of the land. Accordingly, DRIP prides itself on acting as protector of Indigenous land. Unfortunately, the sovereignty of Indigenous peoples to their territories is seldom recognised by the states they reside in. One such example was the proposed Dakota Access pipeline, which led to protests by the Standing Rock Sioux tribe.

The Dakota Access pipeline was supposed to cross Lake Oahe, which supplies the Standing Rock Sioux tribe with clean drinking water. An oil leakage at Lake Oahe would threaten the water supplies for the whole reserve. The pipeline also cut through several sacred sites, including burial sites. Yet the company ignored the sovereign rights of the Standing Rock Sioux tribes to their traditional territories. Although protests against the pipeline received global attention, the Trump administration ordered the company to proceed, despite the Standing Rock Sioux taking legal action against the violations of their sovereign land rights.

Some Indigenous activists argue that the aforementioned violations tend to happen because there is no adequate protection of traditional knowledge of Indigenous worldviews. Intellectual property law typically requires a physical or legal body. Most Indigenous knowledge and traditions are not owned or bound to a specific person, but rather a cultural group. Thus, their knowledge is not protected within the current human rights charter. Further, Indigenous forms of knowledge are often devalued. For example, oral forms of knowledge, such as (spiritual) narratives, which are used to explain modes of governance or environmental practices, are not accepted as ‘real’ or ‘legitimate’ knowledge. These narratives are often deemed myths with no real value, except for nostalgia.[5]

Further, exclusionary educational practices mean that it is difficult for Indigenous peoples to become recognised as experts. For example, in 2016, less than 0,5% of all academics in the United States were Native American. As a result, Indigenous worldviews are seldom given centre stage and are not widely discussed. This results in the cyclical marginalisation of Native American issues in academic and non-academic discourse.

Consequently, human rights for Indigenous peoples often operate as a form of social and political control rather than an emancipatory tool. Indigenous activists often criticize human rights as an assimilatory tool of nation-states because of the practice of selective endorsement. Through selective endorsements, states announce their support for specific rights in order to sustain the domination of Western values, social organization, and nation-state apparatuses. This selective practice ensures the subjugated status of Indigenous groups. As a result, many Indigenous scholars reject the notion of activism within settler nation-states and the human right framework.[6] This leads to development of new concepts born out of Indigenous epistemologies and traditions.[7]

A Path Forward?

If we want to make human rights truly empowering, it is necessary to take care that the rights of Indigenous peoples are upheld in their entirety and that the concept of indigeneity becomes genuinely inclusive.

Practically, this means that we must accept Indigenous rights to land. Indigenous peoples should be able to enact management of their traditional territory. Where this is not possible, I would argue for shared and equal management rights. A good example of how this can be done can be observed on Haida Gwaii in Canada, where the Haida Nation and the Canadian government share the management tasks for the nature reserve park Gwaii Haanas. The protected area covers traditional territories of the Haida Nation. The management consists of an equal number of representatives from the Haida Nation and the Canadian government, and decisions are made by consensus. The management plan is based on the traditional ecological knowledge and the spiritual traditions of the Haida Nation, and the agreement allows the performance of traditional practices, including hunting and fishing, in Gwaii Haanas.

More fundamentally, we have to engage more with the concept of indigeneity. As noted above, critics argue that the term itself is too reliant upon recognition by nation-states, as well as too focused on the experience of colonialism by Western nations.

The crux of the matter here lies in the diversity of Indigenous peoples, which extends beyond the scope of the current definition of indigeneity. As a solution, some scholars have suggested identifying Indigenous people as those who:

are native to their own specific ancestral territories within the borders of the existing state, rather than persons that are native generally to the region in which the state is.[8]

This approach would enable the UN and other entities to assess experiences concerned with colonialism not only by Western nations, but also by other powers. Furthermore, it would point towards the importance of land sovereignty to the people in question. Ancestral territory, something prevalent in Indigenous worldviews, would become the most important criterion, as opposed to recognition by nation-states. It is very likely that the nation-states are the (former) colonizers and those who fight with Indigenous peoples about land rights. Therefore, it would not be in the nation-state’s interests to recognise the group in question as Indigenous, for fear of being criticized on the grounds of international law. Instead, if the focus were on traditional land, Indigenous rights could become a genuinely empowering tool, increasing the political power of Indigenous groups in disputes surrounding traditional territories.

Januschka Schmidt is an MA student in the Faculty of Theology and Religious Studies, where her work focuses on indigenous rights and conflict transformation.

[1] Johnson, J. T., Cant, G., Howitt, R., & Peters, E. (2007). Creating anti-colonial geographies: Embracing Indigenous peoples’ knowledges and rights. Geographical Research, 45(2), 117–120.

[2] Phuntsok, T. (2012). Indigenous Peoples under International Law : An Asian Perspective. The University of Western Ontario.

[3] Jacquelin-Andersen, P. (2018). The Indigenous world. Copenhagen.

[4] Tuck, E., McKenzie, M., & McCoy, K. (2014). Land education: Indigenous, post-colonial, and decolonizing perspectives on place and environmental education research. Environmental Education Research, 20(1), 1–23.

[5] Johnson, J. T., Cant, G., Howitt, R., & Peters, E. (2007). Creating anti-colonial geographies: Embracing Indigenous peoples’ knowledges and rights. Geographical Research, 45(2), 117–120.

[6] Kumar, M. P. (2011). (An)other Way of Being Human: “Indigenous” alternative(s) to postcolonial humanism. Third World Quarterly, 32(9), 1557–1572.

Rana, R. (2007). Symphony of Decolonisation: Third World and Human Rights Discourse. The International Journal of Human Rights, 11(4), 367–379.

Lightfoot, S. R. (2012). Selective endorsement without intent to implement: Indigenous rights and the anglosphere. The International Journal of Human Rights, 16(1), 100–122.

[7] Kumar, M. P. (2011). (An)other Way of Being Human: “Indigenous” alternative(s) to postcolonial humanism. Third World Quarterly, 32(9), 1557–1572.

Coulthard, G. S. (2014). Essentialism and the Gendered Politics of Aboriginal Self-Government. Red Skin, White Masks, 79–103.

Tuck, E., & Gaztambide-Fernandez, R. A. (2013). Curriculum, replacement, and settler futurity. Journal of Curriculum Theorizing, 29(1), 72–90.

[8] Daes, 1996 as cited in: Wilson, P., & Stewart, M. (2008). Indigeneity and Indigenous Media on the Global Stage. In P. Wilson & M. Stewart (Eds.), Global Indigenous Media: Cultures, Poetics, and Politics (pp. 1–38). Durham and London: Duke University Press.